Thursday, January 22, 2009
President Obama yesterday issued an executive order reversing the Bush administration policy of allowing former Presidents or their designates to assert executive privilege and thus to protect certain presidential documents from public disclosure. The new EO returns to policies of the Reagan, G.H.W. Bush, and Clinton administrations under EO 12667 (signed by Reagan). The National Coalition for History reports here.
This move is a significant signal that the Obama administration intends to be much more open than the Bush administration; it will also likely result in wider availability of former Presidents' documents than under the Bush policy.
President Obama's order specifically revoked Bush administration Executive Order 13233, which permitted former Presidents or their designates to assert executive privilege and thus protect their presidential material from public disclosure, whether the incumbent President agreed or not. Obama's order gives this power back to Archivist in consultation with relevant incumbent administration officials and ultimately to the incumbent President.
The Bush administration EO 13233 relied upon Nixon v. Administrator of General Services; EO 13233:
In Nixon v. Administrator of General Services, the Supreme Court set forth the constitutional basis for the President's privileges for confidential communications: "Unless [the President] can give his advisers some assurance of confidentiality, a President could not expect to receive the full and frank submissions of facts and opinions upon which effective discharge of his duties depends." 443 U.S. at 448-49. The Court cited the precedent of the Constitutional Convention, the records of which were "sealed for more than 30 years after the Convention." Id. at 447 n. 11. Based on those precedents and principles, the Court ruled that constitutionally based privileges available to a President "survive the individual President's tenure." Id. at 449. The Court also held that a former President, although no longer a Government official, may assert constitutionally based privileges with respect to his Administration's Presidential records, and expressly rejected the argument that "only an incumbent President can assert the privilege of the Presidency." Id. at 448.
But nothing in Nixon v. Administrator of General Services--stretched as it is here and elsewhere in EO 13233--authorized the unilateral assertion of executive privilege by a former President, without administrative review procedures by the incumbent administration. In fact, the Court in that case also wrote that
[a]n incumbent President should not be dependent on happenstance or the whim of a prior President when he seeks access to records of past decisions that define or channel current governmental obligations. Nor should the American people's ability to reconstruct and come to terms with their history be truncated by an analysis of Presidential privilege that focuses only on the needs of the present. Congress can legitimately act to rectify the hit-or-miss approach that has characterized past attempts to protect these substantial interests by entrusting the materials to expert handling by trusted and disinterested professionals. . . .
In short, we conclude that the screening process contemplated by the Act will not constitute a more severe intrusion into Presidential confidentiality than the in camera inspection by the District Court approved in United States v. Nixon.
If anything, these cases better support Obama's EO (and Reagan's EO 12667).